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 QUR'AN 2:229: "A CHARTER GRANTED TO THE WIFE"?
JUDICIAL KHUL' IN PAKISTAN*

LUCY CARROLL
Cambridge, England

Abstract
(i) what
The study of Muslim law in South Asia highlights two important points: Muslim
is termed Muslim law (or shari'a) is not immutable; and (ii) to discuss
legal
law as a legal system in the modern world it is necessary to locate that
system within the context of a nation-state. to
One of the most dramatic developments when the uncodified law applicable of
Muslims in the new republic of Pakistan fell to be interpreted by Muslim judges
form of
the superior Courts of the new nation was the judicial creation of a new
divorce available at the demand of the wife-the "judicial khul'." women
In retrospect, however, it is unfortunate that counsel representing the than
in the new dispensation relied upon Q. 2:229, rather
whose litigation resulted
Q. 4:35. Thus the new dispensation of 1967 is merely a chapter in an unfinished
story.

Introduction
system
It is sometimes suggested that the greatest defect of the Islamic
is the absolute power given to the husband to divorce his wife without
by
cause.... But experience shows that greater suffering is engendered
the husband's withholding divorce than by his irresponsible exercise of
this right.
t
Professor Fyzee

If a woman be prejudiced by a marriage, let it be broken off. 2

Prophet Muhammad

M USLIM LAW recognizes unilateral, extra-judicial divorce at the

in the
initiative of the husband (and in face of the wife's opposition)

* This essay has been abstracted and condensed from chapters appearing in vol.
Asia. The
III (divorce) of my forthcoming work on Muslim Family Law in South All Paki-
quotation in the title is taken from Khurshid Bibi v. Muhammad Amin,
per S.A.
stan Legal Decisions (hereafter 'PLD') 1967 Supreme Court 72, 117-118;
Rahman, J.
Marriage,"
I A.A.A. Fyzee, "The Muslim Wife's Right of Dissolving Her
(1936) 38 Bombay Law Reports Journal 113, 123.
2 Frequently quoted hadith.

©D E.J. Brill. Leiden, 1996 Islamic Law and Society 3,1

 LUCY CARROLL

form of talaq. It also recognizes extra-judicial divorce by mutual con-

sent of the spouses in the form of khu. A usual concomitant of a khul'
is that the wife pays something to her husband in order to secure his
consent to the dissolution of the marriage. In the words of the Hedaya,
she purchases a divorce from her husband by "offering such a com-
pensation as may induce him to liberate her."'3 The usual terms upon
which a khul' is agreed involve the wife's renunciation or repayment of
her mahr (dower).
The only way a wife can obtain a dissolution of her marriage with-
out her husband's consent and participation is through the Court. All
schools of Muslim law allow the wife to approach the qazi (judge) for
a judicial termination of the marriage (faskh). There is, however, a con-
siderable divergence of opinion among the schools concerning precisely
what grounds afford the Court jurisdiction to dissolve the marriage.
Hanafi law is the most restrictive; the Hanafi qazi could only dissolve a
marriage if the husband had become a missing person and sufficient
time had elapsed since the date of his birth that, if he were still alive, he
would be at least ninety years old;4 or if the husband were impotent at
the time of the marriage and the marriage had never been consum-
mated; 5 or if the girl repudiated the marriage into which she had been
contracted as a minor either by a guardian other than her father or
paternal grandfather or, if by one of these privileged guardians, could
prove that he had acted maliciously or negligently or fraudulently in
contracting her marriage. 6 The fact that the Hanafi wife was ill-treated
or deserted, or that her husband failed or refused or was unable to
maintain her, or that he was insane or afflicted with a virulent and

3 Burhanuddin al-Marginani, Hedaya. Translated by Charles Hamilton, 1790;

Grady edn., 1870, 112.
4 Hedaya (Grady edn.), 215-216. This was the "benevolent" view of the author
of the Hedaya. The position attributed to Abu Hanifa himself is that "when one
hundred and twenty years shall have elapsed from the day of the missing person's
birth, he may be declared legally dead." Abu Yusuf considered as sufficient grounds
on which to presume a missing person dead the fact that were he alive, he would be
a hundred years old (ibid.). Even under the "benevolent" rule of ninety years, a
Hanafi qazi could scarcely have often been called upon to issue such a declaration
in favor of the missing man's wife.
5 Before dissolving a marriage on this ground, the qazi was obliged to give the
husband a year's grace period during which he might attempt to overcome his
incapacity and succeed in consummating the marriage. Hedaya (Grady edn.), 126-
128. Neil B.E. Baillie, Digest of Moohummudan Law, vol. 1, (2nd edn., London,
1875), 347-351 (translation of Fatawa-i-Alamgiri).
6 See Lucy Carroll, "Muslim Family Law in South Asia: The Right to Avoid
an Arranged Marriage Contracted During Minority," Journal of the Indian Law
Institute, xxiii (1981), 149-180.
 QUR'AN 2:229

contagious disease which made cohabitation dangerous for her did not
give her grounds for dissolution of the marriage. 7 Shii law is only
slightly more generous in the grounds on which it permits a wife to
petition for divorce; Shafi'i and, particularly, Maliki law offer much
more succor to the wife.
All Hanafi countries have dealt with the vulnerable position to
which the classical law relegated the abused or neglected wife by
ameliorative enactments affording her enhanced access to judicial
divorce. In South Asia the relevant legislation is the Dissolution of
Muslim Marriages Act, 1939. 8 Section 2 of the statute sets out the

7 A very important feature of Muslim law is that permitting the husband to

delegate to his bride or his wife (or a third party, for example, the wife's father)
authority to pronounce talaq on his behalf. When an unrestricted delegation of the
right to pronounce talaq (talaq-i-tafwid)has been conferred on the wife, the access
of the spouses to divorce is effectively equalized. In South Asia a conditional
(restricted) delegation of talaq-i-tafwidis commonly used as a means of enforcing
stipulations in the marriage contract. For example, the husband promises that he
will not marry another woman during the subsistence of the present marriage and
sanctions that promise by conferring upon the wife a right to pronounce talaq on
his behalf and dissolve her own marriage should he fail to honor his undertaking.
A talaq pronounced by the wife under the delegated authority so conferred takes
effect as a talaq pronounced by the husband. See Lucy Carroll, "Talaq-i-Tafwid
and Stipulations in a Muslim Marriage Contract: Important Means of Protecting
the Position of the South Asian Muslim Wife," Modern Asian Studies, xvi (1982),
277-309.
8 The background to this statute, enacted during the British period by rulers
who had generally refrained from interference in the personal laws of their subjects,
is extremely interesting.
In the unique circumstances of British-India a few desperate Hanafi women had
discovered that a way out of intolerable matrimonial situations existed if they were
willing to apostatize, even temporarily, from Islam. In Islamic law, apostasy on
the part of a Muslim spouse dissolves a Muslim marriage; a female Hanafi
apostatate would, however, be incarcerated until she repented of her error and then
remarried on a minimal mahr (dower) to the man to whom she had been married at
the time of her apostasy. Apostasy was not a crime in British-India; indeed, the
Christian missionaries were actively seeking converts and the Evangelical lobby
was strong. It is to the latter that must be credited the Caste Disabilities Removal
Act, 1850, (otherwise known as the Freedom of Religion Act), which declared that
the apostate lost none of his pre-existing rights (particularly rights of property and
inheritance) by virtue of leaving or being expelled from caste or religious
communion.
Perhaps somewhat illogically, the British-Indian Courts when confronted with
the question decided that, although much of the law of apostasy was not applicable
in British-India, that part of Muslim law which decreed the dissolution of the
apostate's marriage was in force. A Muslim woman could thus easily shed the
husband she despised by converting to Christianity. She could, and often did, then
reconvert to Islam as a single woman.
Although the number of women who resorted to such desperate measures was
small both numerically and statistically, the cases that did occur were widely
publicized in the Urdu press and aroused considerable concern in the Muslim
community. Petitions and memorials were submitted calling upon the government
 LUCY CARROLL

grounds on which a Muslim wife may petition the Court for divorce:
2. A woman married under Muslim law shall be entitled to
obtain a decree for the dissolution of her marriage on any one or
more of the following grounds, namely: -
(i) that the whereabouts of the husband have not been known for
a period of four years;
(ii) that the husband has neglected or has failed to provide for
her maintenance for a period of two years;
(ii-a) [applicable in Pakistan and Bangladesh only] that the hus-
band has taken an additional wife in contravention of the Provisions
of the Muslim Family Laws Ordinance, 1961; 9
(iii) that the husband has been sentenced to imprisonment for a
period of seven years or upwards;
(iv) that the husband has failed to perform, without reasonable
cause, his marital obligations for a period of three years;
(v) that the husband was impotent at the time of the marriage
and continues to be so;
(vi) that the husband has been insane for a period of two years
or is suffering from leprosy or a virulent venereal disease;
(vii) that she, having been given in marriage by her father or
other guardian before she attained the age of sixteen years, repudi-
ated the marriage before attaining the age of eighteen years:
Provided that the marriage has not been consummated:
(viii) that the husband treats her with cruelty, that is to say-
(a) habitually assaults her or makes her life miserable by cruelty

to overrule the Courts which were issuing declarations recognizing the dissolution
of her marriage occasioned by the apostasy of the Muslim wife. The government
was reluctant to take any action unless some alternative remedy were made
available to the women who were using apostasy as a means of obtaining matri-
monial relief otherwise unavailable to them. Meanwhile, many distinguished ulema
issued fatwas proposing that Hanafi women should be allowed access to judicial
divorce on grounds recognized by other Sunni schools, particularly Maliki.
The Act of 1939 was essentially a compromise: it entitled Muslim women to
petition for divorce on the grounds set out in the text (which had been adopted from
Maliki law), while at the same time laying down that apostasy on the part of a
married Muslim woman would no longer have the effect of dissolving her marriage.
9 This clause was added to the Act as applicable in Pakistan and Bangladesh
by the Muslim Family Laws Ordinance, 1961. The same Ordinance contains pro-
visions requiring a man already married who wishes to take another wife to obtain
the prior permission of an arbitration council. Should he marry polygamously
without the requisite permission he is liable to criminal prosecution, and may be
called upon to pay the entire dower (prompt and deferred) due his existing wife (or
wives); the existing wife (or each of the existing wives) is also entitled to claim
divorce on the ground of the husband's remarriage in contravention of the Ordi-
nance.
 QUR'AN 2:229

of conduct even if such conduct does not amount to physical ill-

treatment, or
(b) associates with women of evil repute or leads an infamous
life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property or prevents her from exercising her
legal rights over it, or
(e) obstructs her in the observance of her religious profession or
practice, or
(f) if he has more wives than one, does not treat her equitably in
accordance with the injunctions of the Qur'an:
(ix) on any other ground which is recognised as valid for the
dissolution of marriages under Muslim law.
The Act of 1939 was not a totally satisfactory answer to the
problem of the Muslim woman trapped in an unhappy and oppressive
matrimonial situation. Women who sought divorce under the statute
faced three major difficulties. Firstly, by virtue of the complicated pro-
cedural rules applicable in the British-Indian Courts, litigation could be
considerably prolonged; a divorce case could easily take six years or
more to come to a conclusion. Secondly, judges were not overly sympa-
thetic to women seeking to end their marriages. Divorce had been
introduced in England only in 1937 (two years prior to the Dissolution
of Muslim Marriages Act); orthodox Hindu law did not recognize
divorce at all. It is hard to believe that their own cultural perspectives
did not influence many English and Brahmin judges dealing with cases
involving Muslim women. 10 And thirdly, the grounds for divorce made
available by the Dissolution of Muslim Marriages Act are essentially
"fault-based" and require that the petitioning wife prove the matrimo-
nial offence on which she bases her plaint. In a society in which
women are secluded and in which the bride joins her husband's house-
hold, living with his extended family, proof of matrimonial offences,
particularly those involving ill-treatment and cruelty, is more than
usually difficult: the only available witnesses are likely to be close kin
of the husband, who could be depended upon to support his version of
events. The difficulty of proof is exacerbated when the Courts adopt a

10 Among the judges who were sympathetic to the claims of the Muslim wo-
man under the new statute was Justice Tyabji of the Sind Court. See especially his
exposition of Muslim law of divorce in Mt. Hajra v. Kassim, suit No. 288 of 1942;
decided 18 October 1943; unreported. Mt. Noor Bibi v. Pir Bux, AIR 1950 Sind 8;
Tyabji, C.J., & Muhammad Bachal, J. (Long extracts from the former decision are
reproduced in the latter.)
 LUCY CARROLL

rigorous standard of proof of the ground pleaded, a standard more

appropriate to criminal than to civil cases. I
The limitations of proceedings under the Dissolution of Muslim
Marriages Act were demonstrated by appeals which came before the
Lahore High Court in 1944 and 1952. In these appeals, the women
raised important alternative arguments.

Khul': The traditionalview upheld

The two women whose separate appeals were disposed of by a
Divisional Bench of the Lahore High Court in a single judgment in
1944 (Umar Bibi) had each sought divorce on grounds of legal cruelty
but had failed to prove her allegations. 12 However, in each case the trial
Court had decreed the woman's suit on the ground that the marriage
had so completely broken down that it was not possible for the spouses
to live together in peace and mutual solace as enjoined by Islam. Both
trial Courts had accepted that incompatibility of temperament was a
ground for divorce under Muslim law, and that a divorce on this
ground could be decreed under section 2(ix) of the Dissolution of
Muslim Marriages Act ("any other ground which is recognized as valid
for the dissolution of marriage under Muslim law"). These decrees had
each been reversed by the District Judge, and the women came to the
High Court in second appeal.
One of the trial Courts had characterized the divorce it decreed as a
khul'. Thus the questions considered by the High Court were: (i)
whether a divorce on the basis of khul' can be decreed by the Court in
the face of the husband's opposition; and (ii) whether Muslim law
recognized incompatibility of temperament as a ground for divorce.
Both questions were answered in the negative.
Less than a decade later (1952), a Full Bench of the same Court
considered the matter again. The wife in Sayeeda Khanam had sued for
divorce "almost on all the grounds recognized by law as adequate"
(that is, the grounds enumerated in the 1939 Act). 13 The trial Court

I I The West Pakistan Family Courts Act, 1964, established special Family
Courts with exclusive jurisdiction in regard to the enumerated matters, including
divorce. The Civil Procedure Code, 1908, was expressly declared not applicable to
litigation before these Courts and the procedure followed is simple and expeditious.
As well be seen below, the two other problems noted continue to haunt divorce
litigation.
ltaMst. Umar Bibi v. Mohammad Din , (1944) Indian Law Reports (hereafter
'ILR') 25 Lahore 542; Harries, C.J., & Abdur Rahman, J.
13 Mst. Sayeeda Khanam v. Muhammad Sami, PLD 1952 Lahore 113; Kayani,
J. (referring opinion); Cornelius, Atg. C.J.; Muhammad Jan & Muhammad
 QUR'AN 2:229

decreed her suit on grounds of cruelty and false allegation of adultery.

The District Judge found even these grounds unproved and dismissed
her suit. In appeal to the High Court, counsel for the wife argued, inter
alia, that both lower Courts had recognized that the temperaments of
the spouses were incompatible, and this constituted sufficient ground
for dissolution of marriage in Muslim law.
The Single Judge (Kayani, J.) before whom the case initially came
in second appeal was obliged to follow the Divisional Bench decision
in the earlier case. This he was reluctant to do, since he was of opinion
that Muslim law recognized "shiqaq" (breach; discord) as a ground of
divorce;14 and that a divorce on the basis of shiqaq would fall within
section 2(ix) of the Dissolution of Muslim Marriages Act. He therefore
referred the case to a larger Bench for disposal. The questions before
the Full Bench in Sayeeda Khanam were: (i) whether incompatibility of
temperament constitutes a ground for divorce under Muslim law; and
(ii) whether shiqaq constitutes a ground for divorce under Muslim law.
Again, both questions were answered in the negative.
Since in both Umar Bibi and Sayeeda Khanam the Lahore Court
was presented with similar arguments and reached similar conclusions
on similar lines of reasoning, these cases might conveniently be treated
together.
The wives in both the 1944 appeal and the 1952 appeal invoked the
hadith concerning Jamila and her husband Sabit as a precedent applic-
able to their situations.
The facts were that she hated him with intense hate and he loved her
with intense love. She came to the Holy Prophet and said: "Effect
separation between me and him as I hate him. I saw him, from the side
of my veil, coming amongst people. He was of the shortest stature, the
ugliest in face and blackest in complexion. I do not prefer infidelity
(kufr) after having accepted Islam." Sabit addressed the Prophet as
follows: "0 Prophet of Allah, order that she should return the garden I
gave her." The Holy Prophet said to her: "What have you to say?" She
replied: "I agree and I will give more." Then the Holy Prophet said:
"No, only the garden." Then the Holy Prophet said to Sabit: "Take from
her what you gave and clear her way." Sabit did this and it was the
first khula in Islam. 15

Khurshid Zaman, JJ. (Full Bench).

14 See Qur'an, 4:35, quoted below p. 99.
15 As quoted in Sayeeda Khanam v. Muhammad Sami, PLD 1952 Lahore 113,
p. 122 (citing Imam Razi, Tafsir-ul-Kabir). [On this hadith, see Vardit Rispler-
Chaim, "Hasan Murad Manna', 'Childbearing and the Rights of a Wife,"' Islamic
Law and Society, 2:1 (1995), 92-99 - ED.].
 LUCY CARROLL

It was contended on behalf of the women that if the Prophet of

Islam, functioning in a judicial capacity, had dissolved a marriage
simply on the wife's plea that she hated her husband for no other
reason than his physical unattractiveness, then a marriage could be
dissolved by the qazi at the instance of the wife on proof of a similar
aversion; and the British-Indian and Pakistani Courts, which had taken
over the functions of the qazi, could dissolve a marriage on this ground
under section 2(ix) of the 1939 statute.
The Lahore Court, however, rejected the notion that Jamila's divorce
had been granted by the Prophet functioning in a judicial capacity. To
be sure, Muhammad had ordered Sabit to divorce his wife, and given
the reverence with which the Prophet of Islam was held by his contem-
poraries, it would have been impossible for Sabit to have disobeyed
such an order. Nevertheless, the crucial point was that even the Prophet
did not take it upon himself to dissolve the marriage; he had only
ordered the husband to do so. The Prophet's role in this affair was not
that of judge at all, the Court concluded, but of law-giver, and the law
which was established and exemplified by the episode was the law of
khul', the contours of which were quite unambiguously set forth in the
words of the hadith itself. Explained the Acting Chief Justice in 1952:
Immediately after the wife had spoken her mind, the husband put
forward a claim for return of the garden which he had given her; it
should be noticed that he did not protest against his wife's behaviour,
and indeed, by asking for a consideration, he must be deemed to have
expressed willingness that the marriage bond should be broken in return
for an advantage to be received by him. It only remained for the Holy
Prophet to discover whether there was agreement on the part of the wife
to the proposition offered by the husband, and the tradition makes it
clear that the Holy Prophet did so and finding that there was a
consensus between the parties, he gave a direction which stands as
guidance for all other Muslim married couples for all time. 16
If the couple are mutually agreed to end the marriage, and mutually
agreed upon the terms of the compensation to be passed to the husband,
the marriage can be dissolved extra-judicially. The emphasis is on

16 Mst. Sayeeda Khanam v. Muhammad Sami, PLD 1952 Lahore 113, 123; per
Cornelius, Atg. C.J. See also Mst. Umar Bibi v. Mohammad Din , (1944) ILR 25
Lahore 542, 545; per Abdur Rahman, J.:-"The act of divorce in khula is as much
an act of the husband ...as ... an ordinary divorce [talaq] effected at his sweet
will or pleasure .... The difference in these divorces merely lies in the fact that
while the desire to separate and for emancipation emanates in the case of khula
from the wife only, it is a result of ... execution of his [husband's] one-sided
desire to bring the matrimonial bond to an end in the ... case [of talaq]."
 QUR'AN 2:229

mutual consent and agreement; the process is extra-judicial; and there is

no role for a judge or a Court.
Counsel for the wives also contended that Q. 4:35, concerning the
appointment of arbiters in the case of discord (shiqaq) between the
spouses, conferred authority for dissolving a marriage on the Courts
when such breach or discord was established. This verse reads:
If ye fear a breach between them twain, appoint (two) arbiters, one
from his family, and the other from hers; if they wish for peace, Allah
will cause their reconciliation: for Allah hath full knowledge, and is
acquainted with all things. 17
Again, following classical Hanafi law, the Lahore Court held that
this verse only authorized the arbiters to attempt reconciliation; it did
not empower them to dissolve the marriage against the husband's will
or without his consent. The only manner in which the arbiters might
obtain the power of dissolving the marriage, if they should reach the
conclusion that divorce was the appropriate solution, was for the
husband to delegate such authority to them.
The Divisional Bench in Umar Bibi further considered the procedure
set out in the verse inappropriate to the British-Indian Courts and
incapable of being carried into effect. It would be "problematical" for
the Courts to appoint arbiters from the families of the spouses. Even
if the arbiters were somehow appointed and reached the unanimous
conclusion that the marriage should be dissolved, it was "doubtful"
whether the Court could decree a divorce if the husband himself refused
either to pronounce talaq or to empower someone else to do so on his
behalf.' 8 From the perspective of the British-Indian Court, the arbitra-
tion procedure described in Q. 4:35 would, in practice, prove both
difficult of implementation and unlikely to produce conclusive results,
even if carried out.

17 Qur'an, 4:35 (Yusuf Ali, trans.). The Malikis take this verse very literally
and when the wife makes serious or repeated complaints against her husband but
cannot prove her case, the qazi will appoint two arbiters to look into the matter and
decide it. The arbiters will attempt to reconcile the parties; they may admonish one
or both of them; but if they consider that dissolution of the marriage is the appro-
priate course, they can dissolve the marriage, awarding the wife all or part or none
of her mahr, depending on whom they consider most responsible for the breach. The
husband's consent is not necessary; the order of the arbiters will be enforced by the
qazi. When the dissolution is ordered on payment of compensation by the wife, it
amounts to a khul' enforced without the consent of the husband. (For Maliki law I
rely on two partial translations of the Mukhtasar of Sidi Khalil, oneby F.H. Ruxton
under the title of Maliki Law, 1916; and the other by Alexander David Russell and
Abdullah Suhrawardy, under the title A Manual of the Law of Marriage [n.d.].)
18 Mst. Umar Bibi, (1944) ILR 25 Lahore 542, 550, 552.
 LUCY CARROLL

In his referring opinion in the later case, Kayani, J., suggested that
the provisions concerning the appointment of arbiters were merely
matters of procedure, that the crucial question was whether Muslim law
recognized shiqaq as a ground for divorce; if it did, "it falls within
section 2, clause (ix) of the [1939] Act, whether the Court appoints
19
arbiters or substitutes itself for the arbiters."
The Full Bench in Sayeeda Khanam, however, concluded that this
verse (4:35) applied only to a situation in which the wife was rebellious
or disobedient. In the verse immediately preceding it (4:34), the hus-
band was instructed how to deal with a disobedient wife: he may first
admonish her; if that fails, he may banish her from his bed; if that
proves ineffective, he may physically chastise her. 20 It was at this point,
the Full Bench considered, that arbiters might step in to attempt to
resolve the dispute. These arbiters would be appointed by the tribal
elders, for it was to them, the elders of the community, not to the state
or the judicial officers of the state, that the verse was directed. The
husband could, of course, easily deal with a disobedient wife by
divorcing her. In order to prevent such an unhappy outcome of the
domestic dispute, the elders might intervene and appoint arbiters who
would attempt mediation and reconciliation. Beyond such conciliatory
measures the powers of neither elders nor arbiters extended. The verse
was, on this interpretation, intended to prevent a hasty talaq, not to
assist the wife in obtaining a divorce without her husband's consent.
According to the Full Bench, the situation in which the complaint
emanates from the wife, rather than from the husband, is not dealt with
in 4:35 at all, but in 4:128.
If a wife fears cruelty or desertion on her husband's part, there is
no blame on them if they arrange an amicable settlement between them -
selves; and such settlement is best; even though men's souls are swayed
by greed. But if ye do good and practise self-restraint, Allah is well-
acquainted with all that ye do. 21
There is no reference in this verse to the appointment of arbiters; how-
ever, two verses later there is a reference to the possibility of a separa-
tion. 22 Although there is no precise indication as to how this separation
19 Mst. Sayeeda Khanam, PLD 1952 Lahore 113, 118; per Kayani, J., referring
opinion.
20 "As to those women on whose part ye fear disloyalty and ill-conduct, ad-
monish them (first), (next) refuse to share their beds, (and last) beat them (lightly);
but if they return to obedience, seek not against them means (of annoyance)."
(Qur'an, 4:34: Yusuf All, trans.)
21 Yusuf Ali, trans.
22 "But if they disagree (and must part), Allah will provide abundance for all
 QUR'AN 2:229 LVX

Full Bench) could occur

might be effected, it clearly (in the view of the
of talaq, or a mutually
only as a result of the husband's pronouncement
a justiciable cause pleaded by
agreed khul', or a decree of the Court on
1939 statute).
the wife (such as those available under the
wife with justiciable grounds
Thus, unless the husband provided the
-and neither incompatibility or discord per se constituted such
divorce. In the absence of
grounds-the wife could not obtain a judicial
she could not obtain an extra-
her husband's agreement and consent
judicial divorce.
the Lahore Court remarked
In both Umar Bibi and Sayeeda Khanam
right to divorce. If a woman
on the danger of liberalizing a woman's
that she didn't like her
were allowed a divorce simply on the ground
the Court in Umar Bibi:
husband, or even that she hated him, said
to get rid of the marriage
It will then become possible for any woman
as she temperamentally is-on
tie-fickle minded and impressionable,
fancy.... [I]t will reduce the marriages into more
account of a passing
23
or less a farce.
in Sayeeda Khanam:
The sentiment was echoed by the Full Bench
without the consent
If wives were allowed to dissolve their marriages, paid or promised
giving up their dowers,
of their husbands, by merely
to be paid, the institution of marriage would be meaningless as there
24
would be no stability attached to it.
the Lahore Court are any
Particularly if the cases which reached
or fancied) perfidiousness of
indication, the problem lies not inthe (real
conception of the appro-
Muslim wives, but in the culturally ingrained
their husbands in all circum-
priate behaviour of women (submissive to
the woman needed to produce
stances), and the high standard of proof
sued for divorce on one or
to receive a sympathetic hearing when she
Dissolution of Muslim Mar-
more of the grounds available under the
Cornelius found that the
riages Act. In Sayeeda Khanam, Chief Justice
to no more than
allegations of the wife, even if true, amounted
character [i.e., to
bad manners, tendency to suspect plaintiff's [wife's]contact with, even
into
accuse her of adultery with any man she came
the cook], tendency to give expression to such suspicion, and tendency
towards the wife .... 25
to use violence

that careth for all and is Wise."

from His all-reaching bounty: for Allah is He
(Qur'an, 4:130; Yusuf Ali, trans.) Rahman, J.
23 (1944) ILR 25 Lahore 542, 547; per Abdur
24 PLD 1952 Lahore 113, 136; per Muhammad Jan, J.
25 Ibid., 121; per Cornelius, C.J.
 LUCY CARROLL

In his opinion such "bad manners" and "tendencies" did not amount to
either cruelty or incompatibility of temperament. 26 The Court in Umar
Bibi denied that incompatibility or hatred on the part of the wife toward
the husband could be a ground for divorce, since one of the purposes of
marriage, the procreation of children, could still be served: a woman is
27
physically capable of bearing the children of a man she detests.

The new dispensation,1959

Less than eight years after the decision in Sayeeda Khanam, another
Full Bench of the same Court considered the same questions for the
third time in a decade and a half. On this occasion, however, the result
was to be dramatically different: the Balqis Fatima case represents an
important milestone on the road toward emancipation of Muslim
28
women in the subcontinent.
The parties to this litigation had been married in 1949, but before the
wife went to her husband's house disputes broke out between the
families of the couple with the result that she had never lived with her
husband and the marriage remained unconsummated. In 1952 she filed
suit for divorce on grounds of failure to maintain. She succeeded in the
trial Court but the District Judge overturned that decision, holding that
she was not entitled to maintenance because she had no legal reason
for refusing to take up residence with her husband. At the same time,
however, he dismissed the husband's suit for restitution of conjugal
rights on the ground that it would not be proper to order the wife to live
with her husband when relations between the couple were so strained.
The dispute which destroyed the marriage before it even began was
not between the spouses, but between their families (and between the
husband and members of the wife's family). Although the husband's
pride may have been injured, he was not particularly disadvantaged: he

26 Even before the Act of 1939, a false accusation of adultery had been recog-
nized as a ground on which the wronged wife might obtain a judicial dissolution of
her marriage; the Han of the classical law had been converted in South Asia to a
judicial divorce available on the ground that the husband had made and failed to
substantiate (by any proof admissible under the Evidence Act, 1872) a charge of
unchastity against his wife. After the Dissolution of Muslim Marriages Act lian-
divorces continued to be granted, and were integrated into the 1939 statute either
under the rubric of "cruelty" (section 2(viii)) or the residual section (section 2(ix)). A
"tendency to use violence towards the wife" is hard to differentiate from "habitual
assault," which, again, is a ground for divorce under the statute of 1939.
27 (1944) ILR 25 Lahore 542, p. 547.
28 Mst. Balqis Fatima v. Najm-ul-lkram Qureshi, PLD 1959 Lahore 566;
Kaikaus & Shabir Ahmad (referring opinion); Kaikaus, Shabir Ahmad, & Masud
Ahmad, JJ. (Full Bench).
 QUR'AN 2:229

had no obligations of maintenance toward his wife as long as she was

not living with him and could easily marry a second wife. 29 But the
wife was well and truly trapped; she could not contemplate a new (and
hopefully, more successful) matrimonial alliance until her existing
marriage was dissolved.
In appeal to the High Court, counsel for the wife argued that a
Muslim wife has the right to demand a dissolution of her marriage on
grounds no more substantial than that she disliked her husband's
appearance if she were prepared to forego her mahr (dower). He relied
particularly on Maulana Abdul Ala Maudoodi's 3° Haqooq-uz-Zaujain,
and the Maulana's interpretation of the hadith concerning Jamila and
her husband Sabit, read with Q. 2:229. 3 1 Justices Kaikaus and Shabir
Ahmad, who constituted the Divisional Bench before which the appeal
initially came, were bound by the 1952 decision of the Full Bench in
Sayeeda Khanam, which they were disinclined to accept as a correct
exposition of the law. Therefore, they requested the opinion of a larger
Bench on the question-"Whether under the Muslim Law the wife is
entitled to khul' as of right?" The question was rephrased by the Full
Bench in the course of its deliberations to read-"Is the wife entitled to
dissolution of marriage on restoration of what she has received from
the husband in consideration of the marriage?"
The Full Bench which replied to the referred question was comprised
of the two referring judges and Masud Ahmad, J.; the single judgment
of the Bench was written by Kaikaus, J.
Justice Kaikaus commenced by considering Q. 2:229, which had not
been considered in the earlier cases. This verse reads:
Divorce may be (pronounced) twice; then keep (them) in good
fellowship or let (them) go with kindness, and it is not lawful for you to
take any part of what you have given them, unless both fear that they
cannot keep within the limits of Allah; then if you fear that they cannot

29 As the Muslim Family Laws Ordinance, 1961, was still in the future, he did
not even require the permission of the arbitration council to remarry.
30 Maudoodi (d. 1979) was founder of the Jamaat-i-Islam and not known for
his enlightened attitude toward the rights of women in general. Justice Kaikaus-
who wrote both the opinion referring to the Full Bench the question "Whether under
the Muslim Law the wife is entitled to khula as of right?" and the opinion of the
Full Bench answering it-was not only impressed by Maudoodi's arguments, but
by the authority the Maulana commanded in certain quarters: "The importance of
the opinion of Maulana Maudoodi is enhanced by the fact that he belongs to the
orthodox school. He is not a person against whom a charge of heresy or schism can
be brought." (PLD 1959 Lahore 566, 575.) It is extremely unusual for the opinions
of a living person not examined in Court to be cited in a judicial decision.
31 Quoted below.
 LUCY CARROLL

keep within the limits of Allah, there

32
is no blame on them for what she
gives up to become free thereby.
The first part of this verse is obviously addressed to husbands, im-
posing the limit of three talaqs and enjoining upon them the obligation
of paying their wives' mahr and not taking back from the divorced
woman "any part of what you [the husbands] have given them." Then
there is a proviso legalizing some kind of financial arrangement in
favor of the husband if "both [husband and wife] fear that they cannot
keep within the limits of Allah;" this is a reference to the extra-judicial
khul t by mutual consent and agreement, and involving payment of
compensation by the wife.
Then the wording of the verse changes-"If you fear that they
cannot keep within the limits of Allah, there is no blame on them for
what she gives up to become free thereby." The spouses are now re-
ferred to in the third person, and the question becomes who is the "you"
to whom the words are addressed? Who is to decide that "they" (the
spouses) will not keep "the limits of Allah" (that the marriage has
broken down)? 33 And precisely what powers does the party addressed
as "you" in this part of the verse possess? Clearly, if the husband is
willing to divorce his wife either by talaq or by coming to a mutual
agreement with her on the price of his consent to a khul', the marriage
can be dissolved extra-judicially. But is there some one to whom the
wife can appeal for relief when her husband refuses to release her from
a marriage she finds intolerable? Does the Court have a role to play in
the matter of a divorce by khul' when the parties fail to come to an
agreement? "This verse," explained the Full Bench (Kaikaus, J.),
"admittedly permits the termination of a marriage by the wife passing
consideration to the husband. The question for consideration is whether
this termination can be effected only by agreement between the husband
and wife or whether the wife can claim such termination even if the
'34
husband be not agreeable.
Justice Kaikaus saw no alternative to the contention that the "you"
in the phrase "if you fear" must be addressed to the state and the judi-
cial officers of the state; 35 it clearly was not addressed to the spouses,
32 This is the translation of the verse quoted in the judgment, 572-573.
33 "By keeping 'within the limits of Allah' here is clearly meant the fulfilment
of the object of marriage or performance of the duties imposed by conjugal relation-
ship." (PLD 1959 Lahore 566, 575; quoting Maulvi Muhammad Ali, The Religion
of Islam, 676.)
34 PLD 1959 Lahore 566, 573.
35 This point seems uncontroversial. Yusuf Ali's translation of this line reads:
-"If ye (judges) do indeed fear that they would be unable to keep the limits
 QUR'AN 2:229

who are in this section referred to in the third person as "they" and
"them." In the case of an extra-judicial agreement between the spouses,
there is no need for a reference to the judge. It would only be in
circumstances where the wife wanted a divorce but the husband refused
his consent that a reference to the judge could possibly arise. 36 The
judge (the person addressed in this section of the verse as "you") is then
directed to make a determination as to whether the parties would keep
within "the limits of Allah" if the marriage were to continue. What point
would there be in referring the matter to the judge and in requiring him
to make such a determination if in the result he is powerless to do
anything should he be convinced that the spouses would not remain
within the limits of Allah? The judge, according to this analysis, must
have a role to play in a divorce by khul' (a divorce in which reparations
or financial forfeit by the wife forms a part of the proceedings);
otherwise the verse makes no sense at all. The reference to the judge
("If you fear.... "), the Full Bench concluded, can only mean that he is
entitled to pass an order dissolving the marriage even though the
37
husband does not agree to a divorce.
In a similar vein, the Jamila hadith was seen as a situation in which
the dissolution had been directly ordered by the Prophet acting in a
judicial capacity. The Prophet (acting as judge, not arbiter, conciliator,
friend, or law-giver) had ordered the divorce without any comment on
the reasonableness (or otherwise) of the attitude of the wife, and with-
out seeking the consent of the husband. The marriage was dissolved
simply on the ground that the parties could not live together amicably,
given the wife's extreme aversion; the consent of the husband was as
38
irrelevant as the reasonableness of the attitude of the wife.
Looking at Q. 4:35 ("If ye fear a breach . . .,,),39 the Full Bench

ordained by Allah . . ." and in his notes on this part of the verse he refers to
"properly constituted courts." The difference of opinion concerns precisely what
powers the Court before whom the matter is brought has-that is, power to actually
dissolve the marriage or merely power to adjudicate on the amount of reparation
the woman is liable to pay in consequence of the divorce.
36 Kaikaus, J., did not consider the possibility that a reference to the judge
might arise because the husband demanded excessive compensation, or compensa-
tion excessive in the circumstances.
37 PLD 1959 Lahore 566, 572-573. It would appear that this interpretation was
emphatically propounded by Maulana Maudoodi (see fn. 30 above). Here is the
controversial point. Yusuf Alt in his comments on the verse appears to limit the
jurisdiction of the judge to the matter of the compensation to be paid by the wife.
This also would appear to be the position of Maulvi Muhammad Ali in his
Religion of Islam (quoted in ibid., 575).
3
PLD 1959 Lahore 566, 573-574, 586.
39 Set out above, p. 99.
 LUCY CARROLL

rejected the notion that the "you" used in the phrase "if you fear" (the
same phrase encountered in Q. 2:229) was directed at tribal leaders;
after the Islamic state came into existence, the Court said, the tribal lea-
ders had no authority. As in 2:229, the phrase could only be addressed
to the state and its judicial functionaries. The arbiters referred to in the
verse, according to this interpretation, are not merely mediators or
advisors; they exercise judicial functions and possess judicial powers,
including the power to dissolve a marriage. The power possessed by
the arbiters is not dependent upon a delegation by the husband of his
power to bring the matrimonial relationship to an end, but derives from
their appointment by the entity referred to as "you," i.e., the state or its
judicial officers. n0
Once the focus had shifted from the arbiters and the extent of their
powers, to the authority of the entity addressed as "you" who appointed
them, the arbiters become merely a procedural detail in the exercise of
the authority which now undoubtedly reposed in the particular function-
ary or institution addressed as "you." The authority of the judicial offi-
cer of the state, the qazi, is independent of both the husband and the
arbiters (who, in fact, derive their authority from the qazi who appoin-
ted them). This led to a revolutionary conclusion of potentially far-
reaching import:
The question is whether it is the husband or the authority appointed by
the State that is to determine whether the [matrimonial] relationship is to
continue, and the answer must be that it is the authority appointed by
the State and the matter does not depend on the sweet will of the
41
husband.
There is no dispute concerning the fact that the qazi (judge) does
have authority to dissolve a marriage; the differences among the vari-
ous schools and jurists concern the limits of that authority and the
circumstances within which it can be exercised. The Hanafi school
particularly restricted the qazi's jurisdiction to dissolve marriages to a
few very narrowly defined circumstances. Against that background, the
pronouncement of Justice Kaikaus for the Full Bench in Balqis Fatima
was, truly, a new dispensation:

40 PLD 1959 Lahore 566, 577-579, 591.

41 Ibid., 579. This interpretation, carried to its logical conclusion, would have
a dramatic impact on the husband's exercise of extra-judicial talaq. The Full Bench
in Sayeeda Khanam expressly held that this verse, irrelevant in their view to the
situation where the wife complained against her husband, was intended to prevent a
hasty dissolution of the marriage by the husband's pronouncement of talaq. (PLD
1952 Lahore 113, 131.)
 QUR'AN 2:229

[N]either the Qur'an nor the Hadith enumerate the grounds on which [a
suit for] dissolution can be brought. . .. The only limitation on the
power of the Qazi to dissolve the marriage is his own conscience-his
judgment that the marriage should not under the circumstances be
continued. If the parties cannot live together as Islam intends they
should live, they are to be separated. If the authority of the Qazi to
dissolve a marriage were based on the verse relating to shiqaq [Q.
4:35], even in that case the only limitation on his part would be that a
breach should exist between the parties. However, his jurisdiction goes
beyond that for he can dissolve a marriage on the ground of impotency,
insanity, or absence of husband, or option of puberty, none of which is
a case of shiqaq. His jurisdictionis based on the simple fact that Islam
regards the marriage
42
contract as being capable of termination
[emphasis added].
Given the terms of the reference to the Full Bench, the Balqis Fatima
judgment is only authority for the point that the Muslim wife is entitled
to dissolution of mariage on restoration of what she has received from
her husband in consideration of the marriage, i.e., that the form of
dissolution termed khul' is not dependent upon the husband's consent
and can be decreed by the Court. On the authority of Q. 2:229, the wife
may obtain such a divorce (here termed a "judicial khul"') from the
Court if her husband refuses to agree to an extra-judicial termination by
mutual consent (the traditional khulc). The only restriction derives from
the terms of that verse itself; the judge must be satisfied that if the mar-
riage is not dissolved, the parties will not observe "the limits of Allah."
The judges of the Lahore Full Bench were aware of the revolution-
ary nature of their decision, of the fact that they were granting the wife
a right that had been denied her by Hanafi jurists and commentators for
centuries. Although they were able to invoke some support from Maliki
authorities, fundamentally the Court based its position on the assertion
that in dealing with the interpretation of the Qur'an they were not bound
by the opinions of the classical jurists.
If we be clear as to what the meaning of a verse in the Qur'an is, it will
be our duty to give effect to that interpretation irrespective of what has
43
been stated by jurists.

42 PLD 1959 Lahore 566, 581. In including insanity and desertion by the
husband in this list, Kaikaus is reflecting, not classical Hanafi law, but the law
applicable to South Asian Muslims after the Act of 1939.
43 PLD 1959 Lahore 566, 584. See also Khurshid Bibi v. Muhammad Amin,
PLD 1967 Supreme Court 97, 141; per S A Mahmood, J.:-"If the opinions of the
Jurists conflict with the Qur'an and the Sunnah, they are not binding on Courts,
and it is our duty, as true Muslims, to obey the word of God and the Holy
Prophet." And see ibid., 113; per S.A. Rahman, J.
 LUCY CARROLL

This is a dramatic assertion of the right of ijtihad-theright to exer-

cise independent judgment in interpreting the original sources; the right
to refuse to be bound by the conclusions reached by the sages of past
eras.
Emphasizing that justice demanded making the rights of the spouses
as equal as possible in respect of access to divorce, Justice Kaikaus
responded to the fears expressed by the judges who decided the Umar
Bibi and Sayeeda Khanam cases that any liberalization of women's
access to divorce would be fraught with danger, by noting that the
wife's right to divorce was controlled by the Court. The husband could
pronounce a talaq at his will and pleasure, but when the wife sought
divorce in the absence of her husband's consent, she would have to get
the dissolution effected through the Court. 44 He also paraphrased
Maulana Maudoodi's argument that the moral and the legal aspects of
divorce must be kept separate. Just as it was wrong for the husband to
talaq his wife capriciously, it was wrong for the wife to renounce her
marriage capriciously. But the law ignores these moral questions, leav-
ing them to the individuals concerned, their consciences, and the Al-
mighty. As far as the law was concerned, the husband had the right of
talaq in the face of his wife's opposition and in spite of her innocence;
so also the wife had the right of demanding divorce from the Court in
45
the face of her husband's opposition and in spite of his innocence.

The new dispensation confirmed by Supreme Court, 1967

With two directly conflicting decisions from Lahore Benches of equal
weight (Sayeeda Khanam and Balqis Fatima), it was inevitable that the
matter would come before the Supreme Court of Pakistan. It did so in
46
the 1967 Khurshid Bibi case.
Khurshid Bibi had been married when she was only six or seven
years old; at the same time her brother was married to her husband's
sister. After her husband took a second wife,47 apparently because
Khurshid Bibi had failed to produce any children, relations between the
spouses rapidly deteriorated. She demanded a separate residence apart
from the second wife; her husband promised to provide one, but failed

44 PLD 1959 Lahore 566, 581-582.

45 Ibid., 574-575. See also Mst. Khurshid Bibi v. Muhammad Amin, PLD 1967
Supreme Court 97, 114; per S.A. Rahman, J.
46 Khurshid Bibi v. Muhammad Amin, PLD 1967 Supreme Court 97; S.A.
Rahman, Fazle-Akbar, Hamoodur Rahman, Muhammad Yaqub All, & S.A.
Mahmood, JJ.
47 This event took place before the Muslim Family Laws Ordinance, 1961.
 QUR'AN 2:229

to carry out his promise. 48 She escaped from her husband's house,
"which had become a prison for her," when her brother took out a war-
rant under the Criminal Procedure Code. She sued for divorce under the
Dissolution of Muslim Marriages Act (apparently on grounds of
physical cruelty and non-maintenance); her suit was dismissed. She
then sought a declaration that the marriage had been dissolved by her
husband's pronouncement of talaq, and prayed in the alternative for a
divorce on the basis of judicial khul'. The pronouncement of oral talaq
by the husband was held unproved, but the trial Court, relying on the
49
Balqis Fatimadecision, granted her a judicial khul'.
On appeal, the District Judge did not consider that the award of a
judicial khul' was appropriate. The High Court in second appeal
agreed, observing that since her husband's sister was married to her
brother, her husband could not afford to mistreat her for fear that his
own sister might suffer reprisals at the hands of Khurshid Bibi's
brother. 50 Further, in the view of the High Court, the fact that the wife
was annoyed with her husband and refused to live with him because of
his remarriage did not furnish sufficient basis for a judicial khul'.
Khurshid Bibi appealed to the Supreme Court of Pakistan. In
granting her appeal the Supreme Court followed Justice Kaikaus' judg-
ment on behalf of the Full Bench in Balqis Fatima,reiterating many of
the same arguments and referring to much of the same material. It
stressed the clause in Q. 2:228 (the verse immediately preceding the
verse on khul'), which states that "women shall have rights similar to
the rights against them, according to what is equitable," and empha-
sized "the letter and spirit of the Qur'an which places the husband and
the wife on an equal footing, in respect of rights one against the
other."'5 1 Q. 2:229 was characterized as a "charter granted to the wife."

48 Note that, in the words of the Fatawa-i-Alamgiri,"It is not lawful for a

husband to place two co-wives in one habitation without their consent, from its
necessarily giving occasion for disputes." (Baillie,vol. 1, 191. See also Hedaya
[Grady edn.], 143-144.)
49 The alleged pronouncement took place before the Muslim Family Laws
Ordinance, 1961.
50 Although one of the things that an exchange marriage is supposed to accom-
plish is to guarantee that the wife will be well treated in her matrimonial home
(since a woman from her husband's family is married into the bride's family; each
woman is in a sense a hostage for the good treatment of the other), it would be
naive to assume that things always work out this way. Note how the judge casual-
ly dismissed Khurshid Bibi's plea of ill-treatment on the simple assumption that
ill-treatment could not occur in the circumstances of an exchange marriage.
51 PLD 1967 Supreme Court 97, 114, 120-121, per S.A. Rahman; 144-145,
per S.A. Mahmood.
 LUCY CARROLL

[W]here the husband disputes the right of the wife to obtain separation
by khula, it is obvious that some third party will have to decide the
matter and, consequently, the dispute will have to be adjudicated upon
by the Qazi, with or without assistance of the Hakams [arbiters]. Any
other interpretation of the Qur'anic verse regarding khula would deprive
it of all efficacy as a charter granted to the wife. It is significant that
according to the Qur'an she can "ransom herself' or "get her release"
and it is plain that these words connote an independent right in her. 52
There are thus in Pakistan (and Bangladesh and Azad Kashmir)
two varieties of khul'--one available extra-judicially by agreement be-
tween the spouses, and one available from the Court when the husband
refuses his consent to an extra-judicial dissolution and the wife is
willing to forego her mahr and other "benefits" she has received from
her husband.

What the wife has to establish

In both Balqis Fatima and Khurshid Bibi the Court stressed that the
right of the wife to obtain a judicial khul' was not absolute.
There is an important limitation on her right of khul'. It is only if the
judge apprehends that the limits of God will not be observed, that is, in
their relation towards one another, the spouses will not obey God, that
a harmonious married state, as envisaged by Islam, will not be possible
that he will grant a dissolution. The wife cannot have a divorce for
53
every passing impulse.

Of course, the Qur'anic condition must be satisfied that it is no longer

possible for the husband and the wife to live together in harmony and in
conformity with their obligations. 54
The "apprehension" or "satisfaction" of the judge is essentially a
subjective evaluation. But it has to be supported by something; there
must be some material on the record to justify the conclusion that it is
not possible for the spouses to live together within the limits of Allah.
The nature of that material and what exactly it was to prove (marital
breakdown; causes of the breakdown; reasons for the wife's aversion
for her husband; or merely the existence and extent of that aversion)
were not immediately apparent.
Against the background of considerable confusion, particularly
among the lower Courts, whose approach to the question of judicial

52 Ibid., 117-118; per S.A. Rahman, J.

53 PLD 1959 Lahore 566, 593.
54 PLD 1967 Supreme Court 97, 121; per S.A. Rahman, J.
 QUR'AN 2:229

khul' was far from uniform, Justice Javid Iqbal of the Lahore High
Court attempted to clarify the procedure for the benefit of the Courts of
the Punjab:
It must be clearly understood that just as a husband is given the right to
pronounce Talaq on his wife, in the same way a wife has a right to get
the marriage dissolved on the basis of Khula if she could satisfy the
conscience of the Court that she did not want to live with her husband
and that she was prepared to return the benefits .... [T]he relevant
question is as to what kind of evidence would be required by ...[the
judge] for deciding the matter. The Judge Family Court ....may record
the statement of the wife and that of the husband, if he appears. In the
meantime he is expected to attempt a reconciliation between them, if
possible. But if the wife is adamant and categorically states that she
was not seeking dissolution under the influence of anyone but as a free
agent she felt that no reconciliation was possible, then it would make
little difference whether the wife produced any witnesses in support of
her assertion or the husband claimed or insisted to produce [sic] more
witnesses for unnecessarily delaying the decision. What is required
under law is that the Court should satisfy its conscience as to whether
or not the wife is genuinely determined to get her marriage dissolved by
returning the benefits of the husband. If the Judge Family Court arrives
at the conclusion that no reconciliation was possible, that the wife was
determined to get the marriage dissolved, and that not dissolving the
marriage would amount to forcing or compelling her to live in a hateful
union with the husband, then he must dissolve the marriage on the basis
of Khula [emphasis added].55
The facts of this case were quite straightforward and the circumstances
unique in that the wife asked directly for a judicial khul' (rather than
suing for divorce on grounds, and bringing in judicial khul' as an
alternative plea). The marriage had not been consummated because
after the marriage the wife discovered that the husband, although he
had represented himself as a bachelor, actually had a wife and child.
A month later Justice Iqbal reiterated the point that grounds or
causes for the wife's aversion to her husband were irrelevant in the
context of judicial khul'. 56 The Family Court had denied the wife both a
divorce on the grounds she alleged under the Dissolution of Muslim
Marriages Act, and a dissolution on the basis of judicial khul'. In
regard to the latter point the Family Court held that the woman seeking
a judicial khul' had to prove "that circumstances did exist which made it
impossible for them to live together within the limits prescribed by

55 Muhammad Yasin v. Mst. Rafia Bibi, PLD 1983 Lahore 377, 382.
56 Mst. Rashidan Bibi v. Bashir Ahmad, PLD 1983 Lahore 549.
 LUCY CARROLL

God." In a passage later to be quoted with approval by the Supreme

Court, 57 the High Court rejected this contention in one of the clearest
pronouncements then available:
The principle of Khula is based on the fact that if a woman has decided
not to live with her husband for any reason and this decision is firm,
then the Court, after satisfying its conscience that not to dissolve the
marriage would mean forcing the woman to a hateful union with the
man, [will dissolve the marriage,] and it is not necessary on the part of
the woman to produce evidence of facts and circumstances to show the
58
extent of hatred to satisfy the conscience of the Judge...
The woman in this case had been supporting herself by manual labor
since separating from her husband, whom she alleged had beaten and
ill-treated her, and misappropriated her jewellery, and whom she
characterized as a drunkard, gambler, and womanizer. In her statement
before the trial Court she had declared that she would prefer to be shot
rather than go back to him, and that she was willing to forego her
claims to mahr, etc. if the marriage were dissolved. This statement had
been completely overlooked by the Courts below; the High Court won-
dered what additional facts and circumstances (beyond the fact that she
preferred death to a continuance of the marriage) the lower Courts
considered necessary to establish the existence of extreme hatred on the
part of the wife toward her husband.
Another judge of the Lahore High Court explained the law of
judicial khul' as follows:
The emotions of love and hatred may not invariably have a rational
basis and I think that all that the Courts have to see is whether there is
any possibility of the parties ever living together in order to perform
their marital obligations. If after examining all the circumstances the
Court comes to the conclusion that the marriage has irretrievably
broken down and there is no hope of the parties ever living together to
perform their marital obligations a case for the invocation of the
59
doctrine of khula is made out.
At this point judicial khul' looks very much like "irretrievable break-
down." And irretrievable breakdown is surely evidence of, or equiva-
lent to, shiqaq or breach between the spouses.

57 Abdul Rahim v. Mst. Shahida Khan, PLD 1984 Supreme Court 329.
58 PLD 1983 Lahore 549, 551.
59 Mst. Shahida Khan v. Abdul Rehim Khan, PLD 1984 Lahore 365, 369; Saad
Saood Jan, J.
 QUR'AN 2:229

Judicialdivorce and judicialkhul"

Dissolution on the basis of judicial khul' is usually pleaded, not as the
sole or primary relief sought, but as an alternative remedy should the
wife fail in her primary claim for divorce on one or more of the grounds
available under the Dissolution of Muslim Marriages Act. These are
two different, and mutually exclusive, reliefs. Blurring of this fact and
the confusion concerning exactly what the woman must establish to
obtain a judicial khul are inherent in the frequently raised contention
(liable to be accepted by the lower Courts even as late as 1991)60 that,
having failed to establish the grounds she alleged in support of her
divorce petition, the wife is not entitled to a judicial khul'. This con-
tention, routinely rejected by the superior Courts, is, of course, totally
untenable. It robs the judicial khul' (as a dissolution distinct from that
already available on the specific grounds enumerated in the 1939 Act)
of any value; if a woman can establish grounds under the Dissolution
of Muslim Marriages Act, she can obtain a divorce without rendering
herself liable for payment of reparations to her husband.
It is the liability for payment of reparations (surrender of her mahr
and other "benefits" received from the husband) that most profoundly
distinguishes a dissolution by judicial khul' from a divorce decreed on
one or more of the grounds enumerated in the Dissolution of Muslim
Marriages Act, which preserves (rather than negates) the claim of the
divorced woman to her mahr. Of course, the wife does not have to
prove specific grounds to obtain a judicial khul'; this, however-and as
the case-law makes clear-does not mean that specific grounds are not
present, or even that such grounds have not been legally established.
Because judicial khul' is usually pleaded as an alternative remedy in
suits for divorce on grounds available under the 1939 Act, it transpires
that judicial khul' cases inadvertently illuminate problems associated
with suits under that statute and raise questions concerning the manner
in which the Act of 1939 is interpreted and applied in practice.
The wife in Abdul Majid sued for divorce on grounds of cruelty, ill-
repute, and misappropriation of property; she failed. 6 1 Her alternative
prayer for dissolution by judicial khul' was, however, granted. Uphold-
ing the grant of judicial khul' when it was challenged by the husband in
a Writ Petition, the Lahore High Court remarked that "[a]s discussed in
the impugned judgment, there was not enough evidence to come to a
60 E.g., Mst. Gul Shahbah v. Civil Judge, PLD 1992 Peshawar 13.
61 Abdul Majid v. Rizia Bibi, PLD 1975 Lahore 766; Muhammad Afzal
Zullah, J.
 LUCY CARROLL

conclusion beyond any reasonable doubt that the petitioner was

habitually cruel to the respondent [emphasis added]. '62 (Note that all
three of the grounds pleaded by the wife fall within the rubric of
"cruelty" under section 2(viii) of the Dissolution of Muslim Marriages
Act.) The Dissolution of Muslim Marriages Act does not require all
"cruelty" to be "habitual;" that adjective occurs only in the phrase
"habitually assaults her" in section 2(viii)(a). A single act of unautho-
rized disposal of the wife's property constitutes grounds for divorce; the
wife does not have to prove that her husband "habitually" disposes of
her property. More importantly, is "beyond any reasonable doubt" (the
standard applicable in criminal prosecutions) the appropriate standard
of proof to demand in a civil matrimonial matter?
The husband was arguing that the wife, having failed on the
grounds for divorce that she had alleged, was not entitled to dissolution
by judicial khul'. The High Court rightly repelled this argument. Whe-
ther or not the wife might have succeeded on the grounds she alleged
had the lower Court not expected a degree of proof more appropriate in
criminal cases and had it not required that all "cruelty" be "habitual,"
the High Court might have taken the occasion to give some guidance to
the lower Courts on both these points, instead of merely quoting (with
apparent endorsement) a flawed and misleading statement.
When another husband in another Writ Petition raised the same
argument (that the wife having failed on most of the grounds she
alleged in her main petition, she was not entitled to dissolution by
judicial khul'), the same Court responded by explaining:
[I]f for any technical reason some grounds when treated individually
did not satisfy all the legal requirements, it does not mean that the other
proved elements therein become irrelevant for purposes of khul'. For
example, notwithstanding the finding that "cruelty" is not "habitual" (on
a technical-legal consideration), in the circumstances of a particular
case, it could be of such a type which might have created deep hatred
...[in] the wife for her husband. Chopping off the nose or otherwise
branding the face would apart from physical scars, leave behind
permanent psychological knots and barriers. Similar if not the same
effect might be produced by non-maintenance for slightly less than two
years by 63a rich husband who leaves his sick wife to feed herself on
beggary.
Surely this must be a slip of the tongue; surely the learned Judge

62 Ibid., p. 768.
63 Muhammad Sadiq v. Mst. Aisha, PLD 1975 Lahore 615, 618; Muhammad
Afzul Zullah, J.
 QUR'AN 2:229

could not have meant to imply that chopping off a wife's nose or
branding her face would not constitute grounds for divorce under the
Dissolution of Muslim Marriages Act unless it were "habitual." Most
Pakistani women, like most women elsewhere, have only one nose; and
it can only be chopped off once. An act of gross physical cruelty (that
is, cruelty involving "actual violence of such a character as to endanger
personal health or safety") 64 need only occur once to constitute grounds
for separate living or for divorce under the Dissolution of Muslim
Marriages Act. If it were necessary that such gross violence be
"habitual," the woman would probably be dead before a cause for legal
relief accrued to her.
There is also no reason why the wife of a rich husband who has not
been maintained for slightly less than two years and has been reduced
to begging should not succeed with a divorce petition under the 1939
Act, not on the failure to maintain ground (because of the "technical"
necessity of satisfying the statutory period of two years), but on the
ground that the husband's unjustified refusal to maintain his wife in the
given circumstances constituted "cruelty of conduct" which has "made
her life miserable" (section 2(viii)(a)). "Cruelty" under the Dissolution
of Muslim Marriages Act need not involve physical violence; gross
neglect can amount to cruelty.
The point the learned judge was making-that judicial khul' does not
require the proof of any specific or tangible grounds and that failure to
prove grounds alleged in a divorce petition does not preclude the grant-
ing of a judicial khulF-is valid and important. Unfortunately, he chose
inappropriate examples in the attempt to illustrate the point.
In this particular case the Family Court had actually found one of
the grounds alleged by the wife in her favor-i.e., that the husband had
failed to treat her (a wife of twenty years standing) equally with his
newly married young second wife. This is a perfectly valid ground for
divorce under the 1939 Act. The trial Court had also found in the wife's
favor on the issue of khul', and set the amount of Rs. 800 to be paid by
her as reparations. As the High Court pointed out in dismissing the
husband's petition, "the ground arising out of the petitioner's failure to

64 The definition of matrimonial cruelty in English common law of the mid-

nineteenth century and imported into British-India via the Privy Council decision in
Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, (1867) 11 Moore's Indian
Appeals 551, 611. The definition of the behaviour which constitutes legal cruelty in
matrimonial law has been considerably expanded by both case-law and statutory
law (particularly the Dissolution of Muslim Marriages Act) since 1867. "Cruelty"
need not involve physical violence.
 LUCY CARROLL

treat the plaintiff equally ...[with the] second wife was enough to de-
cree the suit of the respondent." Unfortunately, the High Court did not
make clear in its judgment that the wife, having succeeded in her main
suit under the Dissolution of Muslim Marriages Act, was not65obliged to
pay the Rs. 800 assessed on the basis of her alternative plea.
The young wife in a case which reached the Karachi High Court in
197266 had sued for divorce under the 1939 Act, alleging ill-treatment
from the very beginning of her marriage. Inter alia the wife alleged that
her husband had administered opium to her (apparently as an aid to his
sexual pleasure); that he had beaten her and on more than one occasion
assaulted her father when he remonstrated with him over his treatment
of her; and that he had falsely accused her of adultery with his father
(her father-in-law). Four times she fled (or was driven out of) her
husband's house; three times she returned after some sort of mediation
and settlement. After leaving for the fourth time she sued for divorce.
Besides alleging specific grounds available under the 1939 Act, she
pleaded in the alternative for a judicial khul'. The trial Court dismissed
her suit; the District Judge dismissed her appeal.
When the case came before the High Court, the Judge was extremely
critical of the manner in which the lower Courts had dealt with it:-"It
is clear that the District Court has not cared to examine the evidence on
record and the trial Court has dismissed the suit by resorting to the
expedient of ignoring all the evidence that supported the appellant." The
High Court held that the wife had proved her case of ill-treatment; it
obviously felt that the ground of false accusation of adultery had also
been established. Each of these grounds constitutes a sufficient basis
for a divorce under the Dissolution of Muslim Marriages Act, yet the
Karachi High Court granted the wife a judicial khul'-i.e, the Court

65 The point was finally clarified in Abdul Riaz v. Hamidan Begum, 1994
Supreme Court Monthly Review 2019. The wife's allegations of non-payment of
maintenance for more than two years, failure to perform marital obligations for
more than three years, and habitual assault (each of which constitutes a ground for
divorce under the Dissolution of Muslim Marriages Act, 1939) were all found
proved by the trial Court. Nevertheless, the trial Court dissolved the marriage by
judicial khul' and ordered the wife to surrender land transferred to her at the time of
the marriage by her father-in-law. The District Judge dismissed the wife's appeal
against the reparations ordered by the trial Court.
In accepting her Writ Petition the Lahore High Court observed that "as the
findings of the learned Family Judge on issues Nos. 3, 4, and 5 [the grounds for
divorce which she alleged and the Family Judge had found proved] entitled her to
the decree for dissolution of marriage, it was wholly unnecessary for the marriage
to be dissolved on the ground of Khula." The Supreme Court endorsed the
conclusion of the High Court and refused the husband's petition for leave to appeal.
66 Mst Hakimzadi v. Nawaz Ali, PLD 1972 Karachi 540; Dorab Patel, J.
 QUR'AN 2:229

permitted the abused and ill-treated woman to purchase her freedom

from a cruel and tyrannical husband instead of decreeing her suit for
divorce under the 1939 Act.
The wife in BashiranBibi claimed that the trouble had started when
she inherited some land on the death of her father. 67 She alleged that
her husband attempted to force her to transfer the land to him, and that
on her refusals, she was beaten and eventually turned out. She returned
to the house of her mother. Subsequently her husband, with the aid of
accomplices, forcibly abducted her, her mother, and her sister, held
them illegally for some days, and subjected them to ill-treatment in an
attempt to persuade them not to sell the land they had inherited. A
criminal complaint was filed in regard to these events and the husband
was arrested. The wife filed suit for divorce on grounds of cruelty and
non-maintenance; in the alternative she prayed for a judicial khulc.
Medical evidence and the testimony of her mother supported the
allegations concerning the abduction; a copy of the report to the police
was also introduced.
The wife's suit for divorce was dismissed by the Family Court on
the ground that she had failed to produce any independent evidence of
the ill-treatment in the husband's house or of the abduction. Her prayer
for khul' was rejected on the ground that since she had failed to
establish the allegations regarding ill-treatment and abduction, she had
no reason to develop extreme aversion to her husband which would
entitle her to a judicial khul'.
The District Judge dismissed her appeal. Invoking the writ juris-
diction of the High Court, the wife argued, successfully, that she had
been denied judicial khul' on illegal premises. The High Court agreed,
inter alia, paraphrasing the passage quoted above from Justice Javid
Iqbal's judgment in Rashidan Bibi (a judgment which pre-dated by at
least two years both decisions of the lower Courts in this case). The
real question, however, is not why did she fail in the lower Courts on
her alternative plea for a judicial khul', but why did she fail in the lower
Courts on her primary suit under the Dissolution of Muslim Marriages
Act?
In Bibi Anwar, the wife had been given in marriage by her father at
the age of about eleven to a man of seventy-nine years. 68 She lived with
him for about three years; the marriage was consummated. The old
67 Bashiran Bibi v. Bashir Ahmad, PLD 1987 Lahore 376; Zia Mahmood
Mirzo, J.
68 Bibi Anwar Khatoon v. Gulab Shah, PLD 1988 Karachi 602; Tanzil-ur-
Rehman, J.
 LUCY CARROLL

man became impotent about six months after the marriage and began
ill-treating and beating the girl. Finally, about three years after the
marriage, he threw her out and she returned to her parents' house,
where she remained for three years before suing for divorce on the
grounds of cruelty, non-maintenance, and misappropriation of proper-
ty. (The husband had depossessed the girl of her dowry, a pair of gold
earrings weighing half a tola, and sold them in spite of her protests.) In
the alternative, she prayed for a judicial khul'.
The husband, although served, did not appear and the girl's evi-
dence went unchallenged and unrebutted. Yet the trial Court dismissed
her suit. The District Judge dismissed her appeal.
The girl challenged both judgments in a petition under Article 199 of
the Constitution. The High Court noted that cruelty, non-payment of
mahr, and impotence were all good reasons for the wife to reside
separately without compromising her right to be maintained by her
husband, and that the wife's allegation as to non-maintenance for three
years had gone unchallenged. Further, disposal by a husband of his
wife's property without her consent was a ground for divorce under the
1939 Act, and the wife's evidence concerning the unauthorized disposal
of her gold earrings had not been rebutted. Similarly, her evidence
concerning ill-treatment and cruelty had gone unrebutted. 69 The High
Court concluded that "both the [lower] Courts acted illegally in
dismissing the suit and appeal of the petitioner, in the absence of any
evidence in rebuttal. The judgments passed by the two Courts below
'70
cannot at all be said to be creditable in law."
At this pointkthe High Court could have remanded the case for fresh
trial or decided it itself. The Judge elected to decide it and dissolved the
marriage on the basis of judicial khul', with remission by the girl of her
mahr. If grounds are established under the Dissolution of Muslim
Marriages Act, grant of judicial khul' and infliction of liability for
reparations on the wife are inappropriate.

69 Although she had not pleaded s. 2(vii) of the 1939 Act, the girl also had
grounds on the basis of the "option of puberty." She had been given in marriage by
her father when she was eleven; lived with her husband for about three years; and
instituted her suit when she was seventeen, some three years after being thrown out
of her husband's house. The High Court, in its survey of the grounds available to
the wife under the Dissolution of Muslim Marriages Act, held that this one was not
available to her because the marriage had been consummated. However, the Judge
completely overlooked the fact that consummation had taken place when the girl
was below sixteen and she had not permitted or been subjected to intercourse after
she reached that statutory age. Thus, the consummation would not have the effect
of determining her option of puberty. See article cited in fn. 6 above.
70 PLD 1988 Karachi 602, 615.
 QUR'AN 2:229

The girl in this case, betrayed by her father into a most unsuitable
marriage when only a child, lost her childhood, her virginity, and her
dowry; she endured nearly three years of ill-treatment at the hands of
an impotent old man; she spent five years in litigation (and could not
even get costs from the defendant since he did not contest the suit); and,
finally, she was permitted to purchase her freedom at the cost of her
mahr. The fact that her husband would probably have been unable to
pay her mahr of Rs. 1,000 is immaterial; the Court should have at least
left her with that shred of dignity and self-worth that recognizing the
legitimacy of her complaints would have conferred. This was not a wo-
man like Jamila, in the khul' hadith, who had no more serious com-
plaint against her husband than that she did not find him handsome.

The question of reparations

It is obvious that judicial khul' is granted in a variety of different
circumstances. Three broad categories are suggested by a cursory
perusal of the case-law.
Category A : marriage sabotaged by events or circumstances before
it even got off the ground. E.g.: (i) Balqis Fatima, in which disputes
between the families of the spouses after the nikah (legal conclusion of
the marriage contract) but before rukhsati (when the bride is sent to her
husband's house) had prevented the spouses from ever living together;
the marriage was unconsummated. 7 1 (ii) Muhammad Yasin, where
again the spouses had never lived together because after the nikah the
bride discovered that the bridegroom, whom she had believed a
bachelor, actually had a wife and child. 72 And (iii) a recent case involv-
ing parties obviously married as youngsters; subsequent to the nikah
and prior to the commencement of cohabitation, the girl went on to
acquire two university degrees, while the boy's education terminated at
the eighth standard. 73 The marriage had never been consummated and
the woman sued for dissolution by judicial khul' on the ground of the
disparity in social and educational status between herself and her semi-
literate husband.
In South Asia, the wife in (ii) could possibly have obtained an

71 Mst Balqis Fatima v. Najm-ul-lkram Qureshi, PLD 1959 Lahore 566;

discussed above.
72 Muhammad Yasin v. Mst. Rafia Bibi, PLD 1983 Lahore 377; discussed
above.
73 Daood Ahmad v. Mst. Sabira Mooaddas, PLD 1990 Lahore 158; Khalid
Paul Khawaja, J. See also Syed Dilshad Ahmed v. Mst. Sarwat Bi, PLD 1990
Karachi 239; Tanzil-ur-Rehman, J.
 LUCY CARROLL

annulment on the ground of fraudulent misrepresentation; recourse to

judicial khul gave her the same result more simply. The wife in (iii)
would have been able to obtain a dissolution/annulment on the basis of
the "option of puberty" clause of the Dissolution of Muslim Marriages
Act (section 2 (vii)) if she had instituted her suit (or extra-judicially
renounced the marriage) before she reached the age of eighteen. Again,
recourse to judicial khul' provided her with the same result, and avoided
difficulties that would otherwise have arisen if she were more than
eighteen at the time she filed her suit and couldn't prove that she had
repudiated the marriage before reaching that age; or if the husband had
pleaded that the marriage had been consummated, thereby determining
the girl's option. Balqis Fatima, the wife in (i), had sued for divorce on
grounds of failure to maintain and failed, because she was found to
have no legal justification for living apart from her husband.
In these and similar circumstances, judicial khul' has a very valuable
role to play, especially in the context of arranged marriages and in
circumstances where the marriage has been contracted when the
spouses were either children or strangers. The option of puberty, parti-
cularly in the expanded terms on which it is available under section
2(vii) of the Dissolution of Muslim Marriages Act, covers many but
not all situations. The Pakistani wife relying upon this clause must
prove that she was given in marriage by her guardian before the age of
sixteen, and repudiated the unconsummated marriage before she
attained the age of eighteen. If she were sixteen or over at the time of
the marriage, if she spent a night with her husband after she reached
this statutory age, or if she took no action before she reached eighteen,
this door is closed.
Category B : wife has valid and serious complaints, which she has
failed to establish for whatever reason (including the unrealistic stan-
dard of evidence demanded by the trial Court) in her primary suit for
divorce. E.g.: (i) Hakimzadi, where the High Court was extremely
critical of the lower Courts for "ignoring all the evidence that supported
the [wife]"; 74 and (ii) Anwar Khatoon, where the lower Courts had
similarly ignored the wife's unrebutted evidence. 75 The marriage in
question may have endured (reckoning from rukhsati, not from nikah)
76
for years, or decades.

74 Mst. Hakimzadi v. Nawaz Ali, PLD 1972 Karachi 540; discussed above.
75 Bibi Anwar Khatoon v. Gulab Shah, PLD 1988 Karachi 602; discussed
above.
76 A girl married when she was six or eight has been legally married for ten
years by the time she reaches sixteen or eighteen, although she may have never
 QUR'AN 2:229

Category C : wife has no substantial complaints. This category is

not rendered unimportant merely by the fact that it is not suggested by
the actual facts of any reported case; even Balqis Fatima had com-
plaints against her husband that were substantial, although they largely
involved his conduct in relation to members of her family, not to her
personally. 77 The best example is the historical case of Jamila, who
was unimpressed with the physical appearance of Sabit. 78 This catego-
ry-more hypothetical than real-is the most important of the three
because to it all judicial khul' situations are assimilated, irrespective not
only of the distinctions among them, but of the distinctions between any
one of them and the facts of Jamila's situation.
If judicial khul were simply a dirvorce granted on the grounds of
irreparable breakdown of the marriage, there would be no difficulty in
assimilating the three broad categories described above under that
head. But judicial khul' comprehends more than the fact that the
marriage is dissolved on the basis of what may be termed "irreparable
breakdown" on the demand of the wife. Judicial khul' is a dissolution
with particular consequences, consequences which exonerate men and
penalize women.
In terms of consequences, the distinction between a divorce decreed
on one or more of the grounds available under the Dissolution of Mus-
lim Marriages Act and a dissolution granted on the basis of judicial
khul' lies in the repercussions on the economic rights of the wife. A
divorce on grounds entitles the wife to her full mahr if the marriage has
been consummated (or if the Hanafi couple have been in private retire-
ment). A judicial khul' renders the wife liable for forfeiture of all her
mahr plus restoration of any gifts and repayment of any expenses in-
curred by her husband in connection with the marriage. The liberaliza-
tion of the wife's access to divorce in Pakistan has been achieved at
considerable financial cost to the woman.
Yet this consequence was not inevitable. Maulana Maudoodi-
whose arguments weighed so heavily with Justice Kaikaus in Balqis

lived with her husband and may never have been properly a wife.
77 "The respondent [husband] has prosecuted the father and brothers of the
appellant [wife]. He brought a serious charge against the brother of the appellant
which appears to be untrue. He brought a charge of amorous connection prior to
marriage which has been repudiated. The appellant believed that the respondent
was the cause of a murderous attack on the appellant's brother and of an insult to
the women-folk of her family." PLD 1959 Lahore 566, 595-596 (statement of the
Divisional Bench in awarding Balqis Fatima a judicial khul' after the question
referred to the FullBench had been answered in the affirmative).
78 See Jamila hadith set out above, p. 97.
 LUCY CARROLL

Fatima-apparently did not automatically impose such a heavy penalty

on the wife, and left it to the Court "to fix a consideration keeping in
view the circumstances of the case."'7 9
The Full Bench of the Lahore High Court in Balqis Fatima did not
assume that a restoration of all "benefits" received by the wife was a
necessary concomitant of a judicial khul':
Islam does not force on the spouses a life devoid of harmony and
happiness and if the parties cannot live together as they should, it per-
mits separation. If the dissolution is due to some default on the part of
the husband, there is no need of any restoration. If the husband is not in
any way atfault, there has to be restoration of property received by the
wife and ordinarily it will be of the whole property but the judge may
take into considerationreciprocal benefits received by the husband and
continuous living together also may be a benefit received [emphasis
added] .80
There is Hanafi authority for the proposition that if the wife obtains
a khul' due to ill-treatment by the husband, it is unlawful for him to take
anything from her as compensation. 8 1 If this rule applies in the case of
an extra-judicial khul', there is no reason why it should not be applic-
able in the case of a judicial khul'. It was to protect the woman from
being ill-used by a husband who wishes to terminate the marriage but
prefers to induce or coerce his wife into a khul' rather than simply
pronouncing a talaq because the former course absolves him of liability
for the mahr that many commentators apparently permitted recourse to
82
the judge on the matter of compensation.

79 The Azad Jammu & Kashmir High Court summarized Maudoodi's position
as follows:-"Maulana Maudoodi in his Tafseer of the Holy Qur'an (Tafhim-ul-
Qur'an), Vol. I, writes in note No. 252 to verse 229, Sura Albaqra that if the
husband wants to divorce the wife for a consideration, well and good, but if the
husband does not agree and the case comes up before the Qazi or the Court, then
the Court shall make an enquiry if the wife's dislike or hatred for the husband has
reached such a point that it is not possible for them to pull on together, [and
having so found] then it shall be competent for the Court to fix a consideration
keeping in view the circumstances of the case, and the husband shall have to di-
vorce the wife by accepting such a consideration." (Mst. Resham Bibi v. Muhammad
Shafi, PLD 1967 Azad Jammu & Kashmir 32, 43. See also Mst. Parveen Begum v.
Muhammad Ali, PLD 1981 Lahore 116, 125; per Zakiuddin Pal, J.)
80 Balqis Fatima v. Najm-ul-lkram Qureshi, PLD 1959 Lahore 566, 582.
81 Muhammad Ala-ud-din Haskafi, Durr-ul-Mukhtar.Translated and edited by
B.M. Dayal; reprint of 1913 edn., 248. Ameer Ali, Mahommedan Law (5th edn.,
ed. by Raja Said Akbar Khan; Lahore: Law Publishing Co., 1976), vol. 2, 469.
82 It is ironic that while under the classical Hanafi law, the husband had
complete authority to decide whether or not the marriage would be dissolved when
his wife asked for a khul', but the matter of compensation could be referred to the
Court, the tables have been reversed in the Pakistani judicial khul'. In the case of a
judicial khul', the decision as to whether or not the marriage will be dissolved has
 QUR'AN 2:229

Whether the reasons for the wife's determination to bring the mar-
riage to an end are relevant in the context of determining the question of
the woman's entitlement to judicial khul" is a totally different question
from that of whether the reasons for the breakdown of the marriage are
relevant to the question of compensation. Having answered the former
in the negative (that is, no detailed reasons or explanations are neces-
sary to justify the wife's demand for judicial khul'), it does not neces-
sarily follow that the second question must also be answered in the
negative and that payment of compensation should be an automatic
liability of the wife, regardless of the circumstances. Unfortunately, the
83
Supreme Court took the opposite position in Khurshid Bibi.
Dissolution by judicial khul' and surrender of mahr may have been
appropriate in the Balqis Fatima case. The marriage had not been
consummated and the couple were caught up in a dispute between their
respective families, in which the husband himself became an active
participant.
Khurshid Bibi's situation was very different. The marriage had been
consummated; the parties had lived together for several years; and her
complaints against her husband were quite serious. The Supreme Court
appears to have accepted that her husband had not treated Khurshid
Bibi equitably with her co-wife; his failure to honor his promise to
provide her with a separate residence (a matter which was clearly
within his means) evidenced "a lack of regard and consideration for
her."84
It is equally clear that Khurshid Bibi's husband had physically ill-
treated and abused her. Although the appeal to the Supreme Court
involved only the issue of whether Khurshid Bibi was entitled to a
judicial khul', the question remains-why did she fail on the fault-
based grounds alleged in her initial suit? More importantly, having
decided that she was entitled to a judicial khul', why was the Supreme
Court so heavy-handed in its attitude toward payment of compensation
by this harassed and abused woman? In the words of Kaikaus, J., the
respondent in Khurshid Bibi was not a husband who was "not in any
way at fault." Yet the Supreme Court made it clear that the wife would

been taken out of the hands of the husband, but he has been given final say in the
matter of compensation (as long as he does not demand more than he has actually
given the woman and expended on the marriage).
8 Mst. Khurshid Bibi v. Baboo Muhammad Amin, PLD 1967 Supreme Court
97.
84 Ibid., 132; per S.A. Mahmood, J. Failure to treat co-wives "equitably in
accordance with the injunctions of the Qur'an" is a ground for divorce under the
Dissolution of Muslim Marriages Act (section 2(viii)(f)).
 LUCY CARROLL

be required not only to surrender her mahr, but to repay her husband
any other sums he might have expended by way of gifts, etc. This, too,
in spite of the fact that the Hedaya declares that it is "abominable" for
the husband to claim more than the mahr in a case of khul'. 85
The Supreme Court in Khurshid Bibi had the opportunity to distin-
guish that case from the Balqis Fatima case on the question of repara-
tions and to lay down guidelines for dealing with the question of
compensation payable by the wife for her freedom. It failed to seize the
moment. Having removed from the husband's hands the power of
deciding whether or not the marriage would be dissolved, it placed in
his hands the matter of the compensation to be paid to himself.
Though according to the Hedaya, it is abominable on the part of the
husband to have more than the dower itself, in a case of separation by
khula, yet if he insists, it is legally permissible for him to demand
something more than the dower, and to the extent that he might have
been out of pocket, in respect of gifts given to the wife on marriage, he
may, in law demand restitution. 86
The assumption adopted in judicial khul' cases is that since the wife
failed to establish one of the specified fault-based grounds available
under the Dissolution of Muslim Marriages Act, the husband stands
exonerated of any fault or blame. This is an untenable assumption (as
the Khurshid Bibi case itself demonstrates). Further, the Courts have
totally ignored the "reciprocal benefits" which the husband may have
received from the marriage, benefits which Kaikaus, J., realized could
include the fact of "continuous living together." Surely, it must be taken
into account that, for whatever number of years, the wife was cook,
housekeeper, and domestic manager; field worker, livestock hand, or
wage-earner bringing in a salary; that she bore and raised her hus-
band's children; etc. Particularly given that there is no concept of matri-
monial property and no provision for alimony for a divorced woman,
the woman's mahr is very important and she should not lightly be
deprived of it.

Concluding remarks
The imposition of liability on the wife for reparations appears to be a
consequence of the fact that the wives in Balqis Fatima and Khurshid
Bibi cast their claim in the form of khul', which traditionally carries the

85 Hedaya (Grady edn.), 113. See also Baillie, vol. 1, p. 306.

86 PLD 1967 Supreme Court 97, 121; per S.A. Rahman, J.
 QUR'AN 2:229

connotation of a dissolution obtained by payment of a ransom. The

result might have been different if the women had invoked instead Q.
4:35 and asked for dissolution on the basis of shiqaq, rather than khul'.
Justice Kaikaus discussed this verse in the Balqis Fatima judgment,
merely as supportive of his interpretation of the khul' verse (2:229):
Before proceeding further, it will be proper also to reproduce the allied
verse of the Qur'an which relates not to khula but to disagreement
between the spouses and provides for the action that should be taken in
cases of such disagreement. The two matters are connected for if the
Qur'andoes not envisage the continuance of a marriedlife in the case
of a breach and provides for dissolution in such a case even without
restorationof benefit, the claim of the wife to a khula as of right
becomes stronger [emphasis added]. 87
Justice Kaikaus did not find a significant difference between the
jurisdiction of the qazi as defined in 2:229 and 4:35, and concluded that
in effecting separation under either, "the Qazi adjusts the financial
matters so as to direct a partial or total restoration of the benefits
received by the wife."'88 That is, in Justice Kaikaus' view the Court
retained control of both the decision as to whether the marriage would
be dissolved (whether on the basis of shiqaq or khul'), and the decision
as to the amount of compensation (if any) to be paid by the wife.
Clearly, total restitution was not seen as an inevitable corollary of a
dissolution on the basis of either khul' or shiqaq.
The Supreme Court confined itself to a consideration of the authority
of the Court to grant a dissolution on the basis of khul' (a dissolution
which, while the wife is not required to prove grounds or reasons,
carried with it as an inherent attribute, the liability for reparations). The
Supreme Court did not consider verse Q. 4:35 and did not discuss
dissolution on the basis of shiqaq.
As matters currently stand, the economic position of the divorced
wife is an all or nothing affair: if she succeeds in a suit on grounds
under the Dissolution of Muslim Marriages Act, she retains her full
mahr (assuming that the marriage had been consummated) and gifts
received from her husband; if she loses on her main pleas and has to
settle for a judicial khul', she loses everything. One result is that divorce
litigation is bitterly contested, not necessarily because the husband does
not want a divorce, but because he wants to avoid payment of the
mahr.

87 PLD 1959 Lahore 566, 577.

88 Ibid., 582.
 LUCY CARROLL

A movement toward "no fault" divorce must be paralleled by an

approach to financial relief for the divorced woman which is equally
independent of the reasons for the breakdown of the marriage. The
economic vulnerability of the divorced woman is the major socio-legal
challenge facing Muslims of the subcontinent. Only India (among the
89
South Asian states) has attempted to meet this challenge.
Although the decisions of the Lahore High Court and the Pakistan
Supreme Court in Balqis Fatima and Khurshid Bibi have considerably
enhanced the Pakistani wife's access to divorce, the new dispensation
imposes a severe (and frequently unjustified) financial penalty on the
woman. Q. 2:229 and the judicial khul' derived from it have failed to
fulfill the promise inherent in the characterization by the Supreme Court
of the former as "a charter granted to the wife." Perhaps that accolade
will eventually, and more soundly, be attracted to Q. 4:35, read with Q.
2:241:
For divorced women maintenance (should 9°
be provided) on a reasonable
scale. This is a duty on the righteous.
The word (muta') translated by Yusuf Ali as "maintenance," is more
commonly (and more appropriately) rendered "provision" in other
translations. This is another verse conferring rights upon women which
has traditionally been interpreted by Hanafi jurisprudence in a fashion
which provides little benefit to women and little inconvenience to men.
Space does not permit an exploration here of the classical interpre-
tations, or the present demands by women for a reinterpretation which
will belatedly ensure to them the benefit of this mandate from heaven.

89 Criminal Procedure Code, 1974, sections 125-128; and Muslim Women

(Protection of Rights on Divorce) Act, 1986. See Lucy Carroll "Muslim Family
Law in South Asia: Important Decisions Regarding Maintenance for Wives and
Ex-Wives," Islamic and Comparative Law Quarterly, i (1981), 95-113; Lucy
Carroll, "The Muslim Women (Protection of Rights on Divorce) Act, 1986: A
Retrogressive Precedent of Dubious Constitutionality," Journalof the Indian Law
Institute, xxviii (1986), 364-376; and Lucy Carroll, "Financial Liability of Muslim
Husbands: Two Dramatic Decisions from India," Bulletin of the Committee on
South Asian Women, v (1987), 19-25.
90 Yusuf Ali trans